Model Resolution Opposing Obamacare Exchange

The draft legislative resolution below* opposing the creation of a state Obamacare insurance “exchange” is on the agenda for the American Legislative Exchange Council’s annual meeting next week. Members of ALEC’s Health and Human Services Task Force will take up the measure, and could vote to make it an official ALEC model for legislatures around the country to consider adopting.

ALEC is a center-right organization comprised of state legislators and others, whose main activity is the draft model legislation. The National Conference of State Legislatures is ALEC’s center-left counterpart.

Three Michigan state legislators are on ALEC's Health and Human Services task force, and will have an opportunity to vote on this resolution. They are: Sen. Bruce Caswell, R-Hillsdale; Rep. Matthew Lori, R-Constantine; and Rep. Kenneth Kurtz, R-Coldwater.

Summary

Twenty-six states have joined in a lawsuit to have the federal Patient Protection and Affordable Care Act (PPACA) ruled unconstitutional. Nevertheless, many of the plaintiff states continue to plan PPACA health insurance exchanges, using federal funds to do so, undermining their own position as plaintiffs. This resolution urges state officials to stop planning PPACA exchanges and urges Congress to defund such efforts

Model Resolution - PPACA State “Exchanges”

WHEREAS, the federal government has enacted the Patient Protection and Affordable Care Act (PPACA) ostensibly for the purpose of making health insurance more affordable for American citizens; and

WHEREAS, PPACA includes a provision requiring the creation of health insurance exchanges (exchanges) in each state where only health insurance policies that meet certain requirements determined by the federal government may be bought and sold; and

WHEREAS, exchanges may only be established by each state subject to approval by appointed federal officials; and

WHEREAS, if a state does not establish an exchange, appointed federal officials will establish one in that state; and

WHEREAS, state-created exchanges put states in the position of ceding their resources and sovereignty to the service of the federal government, sacrificing their ability to flexibly serve their own citizens; and

WHEREAS, twenty-six states are suing to have PPACA struck down partly due to the arguable unconstitutionality of the individual mandate and briefs submitted by the federal government in Florida v. U.S. Dept of Health and Human Services make clear that exchanges are a key part of the individual mandate; and

WHEREAS, the United States Supreme Court states in part, in its recent ruling in Bond v. United States, “Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power,” effectively instructing state leaders that they share in the responsibility to preserve liberty; and

WHEREAS, Judge Vinson, in his ruling of March 3, 2011 staying his original decision in Florida v. U.S. Dept of Health and Human Services striking down the PPACA as unconstitutional, stated in footnote 7 that “the severity of that injury (from the PPACA) is undercut by the fact that at least eight of the plaintiff states (noted further infra) have represented that they will continue to implement and fully comply with the Act’s requirements --- in an abundance of caution while this case is on appeal --- irrespective of my ruling,” clearly implying that as states continue to plan exchanges in preparation for PPACA implementation, the perceived harm to states is reduced, making it less likely the PPACA will ultimately be declared unconstitutional; and

WHEREAS, if the PPACA is struck down, states planning PPACA exchanges will have participated in wasting millions of dollars of taxpayer funds in planning defunct exchanges; and

WHEREAS, despite claims by some that states can create PPACA-compliant exchanges that enjoy the benefits of market forces, these exchanges would be completely artificial devices offering insurance products regulated in their essential characteristics by the federal government, making exchanges anything but free markets; and

WHEREAS, PPACA health insurance exchanges will continue to be subject to the arbitrary whims of the federal bureaucracy which, having extensive ongoing rulemaking authority, can render any plan for a state exchange today, no matter how rational and well-designed, obsolete and irrelevant at a later date; and

WHEREAS, the PPACA does not clearly and unequivocally pre-empt state law, containing only a vague provision that seems to say that federal law does not preempt state laws preserving free enterprise health care systems, but the establishment of exchanges necessitates state laws conform to PPACA and states establishing exchanges will actively participate in the pre-emption of their own laws; and

WHEREAS, there is no penalty for a state in allowing the federal government to implement an exchange and doing so puts federal officials in the position of asking a state for permission to operate an exchange rather than states supplicating to appointed federal officials; and

WHEREAS, states can, and should, develop and implement their own, state-based health reform solutions that are tailored to the targeted needs of their citizens without the mandates within PPACA.

NOW, THEREFORE BE IT RESOLVED, that {insert state legislature} believes it is not in the best interest of the state for any state official to participate in planning or establishing health insurance exchanges as provided for in the federal Patient Protection and Affordable Care Act; and

BE IT FURTHER RESOLVED, that {insert state legislature} urges Congress to defund planning grants to states for the establishment of PPACA health insurance exchanges by the states; and

BE IT FURTHER RESOLVED, that copies of this resolution be sent to the President of the United States, the appropriate leadership of the United States Congress and the United States Department of Health and Human Services, and the entire {insert state} delegation in the United States Congress.

* Note: The final version contained some minor revisions that did not make any substantive change to what appears here. The final version is not currently available due to web site problems at ALEC.

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